Trial Report: Forty-Three

This report covers the period Saturday, 31 March - Thursday, 5 April 2001

The court was not in session between March 31 and April 4.

Wednesday April 4, 2001

Basson's legal team began their argument for the dismissal of the human rights related charges.

Adv Jaap Cilliers' argument focussed on the credibility of state witnesses and the contradictions between their testimonies. Adv Cilliers said that the motives of all these witnesses in testifying against and implicating Basson in murder, was self-preservation. In that respect, he said, this case presented a unique situation, since in their efforts to incriminate Basson, the State’s key witnesses had contradicted one another repeatedly, and in the end, the court would have to find that none of them was credible.

He argued that State would be left with a situation where it would have to ask the court to accept the testimony of one witness, in regard to a specific incident, but reject that of another. The State may even be obliged to ask the court to accept only selected aspects of one witness’s testimony and reject the rest in favour of another witness’s account which lent more support to the case.

Cilliers focussed his argument on the testimonies of Johan Theron, Danie Phaal, Kobus Bothma and Trevor Floyd, calling their credibility into question.

The judge observed that prosecutor, Dr Pretorius had made the point, several times, that he was not able to handpick his witnesses, but had to work with the material he had.

Cilliers said that he had taken note of Dr Pretorius’s introductory remarks about what factors ought to be taken into account when considering acquittal. But, in his opinion, it is incumbent on the court to take the credibility of witnesses into account at this stage. The only thing which the court does not have before it at this time is a version of events by the accused from the witness stand. He said it must already be obvious that if the accused were to testify, his version would in not advance the State case. Cilliers said his opinion was that the arguments being presented during this phase of proceedings should be subject to the same criteria as closing arguments.

The judge entered the debate saying that it was essential for the court to consider the ease with which an accused could refute the evidence presented against him. Cilliers answered saying that no reasonable court would convict on the grounds that an accused does not testify and it was thus absurd to suggest that credibility of witnesses was not a factor to be taken into account at the acquittal stage. The judge did not accept Cilliers' argument in this regard.

Thursday April 5, 2001

Defence advocate Jaap Cilliers continues to argue for Basson’s acquittal on all the human rights violation charges (32-63) by challenging the Pretoria High Court’s jurisdiction.

Cilliers claimed that the 1989 Namibian amnesty which blankets all members of the security forces, extends to charge 45 (detainee who died in 1 Military Hospital after being fed "jungle juice" in the cells at Ondangwa. Cilliers also challenged Danie Phaal's version of events. Phaal was the only witness to testify about this incident.

Cilliers dealt with the specific charges against Basson, and reiterated that there were inconsistencies in the witnesses testimonies.

On April 6 he will continue to argue for the dismissal of charges, beginning with the charge relating to the alleged poisoning of Rev. Frank Chikane. This will be reflected in the next weekly report.

This report has been prepared by Chandré Gould and Marlene Burger. Chandré  Gould is a research associate at the Centre for Conflict Resolution working on the Chemical and Biological Warfare Research Project. Marlene Burger is monitoring the trial  as part of the CCR Chemical and Biological Warfare Research Project. The Chemical and Biological Warfare Research Project is funded by the Ford Foundation, the Friedrich Ebert Stiftung and the Norwegian Government.

Centre for Conflict Resolution, UCT, Private Bag, Rondebosch, 7701, South Africa Tel: (27) 21-4222512 Fax: (27) 21-4222622 Email: [email protected]